Bbown, I.
The plaintiff was walking on Nutt Street in the city of Wilmington, at a locality where many of defendant’s tracks cross it leading to the wharves on the Cape Pear River, when he was run into by a car and knocked down and injured. There are no exceptions to the introduction of evi[335]*335dence, and the errors we are asked to review are confined to the charge of the Court.
The evidence is very conflicting as to how the injury was occasioned, as to speed of the moving car, as to whether it was an attempt to make a running switch, and as to the vigilance of the flagman and the other servants of the company. There was evidence introduced by plaintiff tending to prove that the crossing is a dangerous one; that there are some fifteen tracks crossing Nutt Street there; that trains and engines are constantly going in different directions at the same time on some of these tracks; that the street leads across these tracks to the Seaboard Air Line depot, and that there is much traffic and passing along it; that there are no gates to close when engines and trains are passing and only one flagman whose duty it is to warn passers of the approach of trains.
Plaintiff testifies that on 16 January, 1905, he had crossed thirteen tracks and was looking out for the cars; that he saw some up towards the bridge standing still; that he then looked towards the compress for cars on that track; that he continued to walk on, looking for cars, when he was hit by one unawares and badly injured; that the car was a flat-car with no one on it; that Mr. Hankins, the crossing-flagman, was in a little house 125 feet away, and if he saw him he did not come to his rescue. Plaintiff also offered some evidence tending to prove that the flat-car which struck him was a loose car which had been “kicked,” in railroad parlance, from the train for the purpose of making a “running switch” ; that the car was moving fast across Nutt- Street when it hit plaintiff, and that “there was no one on it or near it”; and one witness said that “there was no flagman at all.” There was strong contradiction of this evidence by defendant’s witnesses, but it is unnecessary to set out the tenor of their evidence.
The defendant offered, also, evidence tending to prove contributory negligence upon the part of the plaintiff.
[336]*336It is not to be doubted that upon plaintiff's showing the defendant was guilty of negligence, and in the absence of contributory negligence the plaintiff is entitled to recover damages.
The attempt to make a running switch across a much-frequented street is not only a ,negligent, but a most dangerous and unwarranted operation, and has been so held by a number of courts: Bradley v. Railroad, 126 N. C., 135; Brown v. Railroad, 32 N. Y., 591; Fulmer v. Railroad, 68 Miss., 355; Railroad v. Summers, 68 Miss., 566; French v. Railroad, 116 Mass., 537; Railroad v. Garvey, 58 Ill., 83; Railroad v. Baches, 55 Ill., 379.
It matters not whether the purpose was to “shunt” the car off on a switch or to give it force enough to roll along on the same track: it is negligence to permit a car to be “cut loose” and roll on uncontrolled by any one across a much-used crossing.
The jury having taken plaintiff’s version as the true one, there is sufficient evidence to uphold their finding on the first issue. Upon the issue of contributory negligence the evidence is conflicting. The evidence of the plaintiff, carefully examined, tends to prove that he was exercising all the care a man in his condition and circumstances could well exercise. There aré a great many tracks along there, and the most prudent of men may get confused; but the plaintiff states how he looked, and where he looked, and it is evident from his statement he was doing all he could to safeguard himself. The plaintiff’s evidence, if believed, abundantly justified the verdict of the jury. It is therefore our opinion that his Honor properly overruled the motion to nonsuit. It is not necessary that we should set out his Honor’s charge. It is very clear and comprehensive, stating with fullness and fairness the contentions of plaintiff and defendant and then instructing the jury clearly as to the law upon the different phases of the evidence. At the close of the evidence the Court [337]*337gave certain instructions at request of plaintiff, and in the words of the prayers, which are excepted to. Among others, he gave the following:
‘‘If the jury find from the evidence that the crossing along Nutt Street, having fifteen or more tracks upon which engines and cars were constantly shifting, was used by a very large number of people in the conduct of their business, then it was the duty of the defendant to furnish to persons desiring to cross the railroad at Nutt Street, in the city of Wilmington, either on foot or with vehicles, a reasonably safe method of crossing, either by way of bridges, gates, an adequate number of flagmen or watchmen, or in some other way. That even if the jury should find from the evidence that the plaintiff was negligent in not using ordinary care in looking and listening for approaching trains, still the jury should answer the first issue Wes’ if they further find from the evidence that the defendant could have prevented the injury by the use of means at hand or that it could have had at hand by t-heyise of reasonable care and diligence; and the fact that the plaintiff was deaf does not make him an outlaw, neither does it lessen the responsibility of the defendant company to warn him of approaching danger.”
The first objection made to this instruction is that it ignores the necessity for determining the proximate cause of the injury. Taken alone, the criticism may be well founded. But the charge must not be taken in sections, but as a whole. The jury had just been told in unmistakable terms that they must find “that such negligence produced the injury complained of,” and again, “that such negligence was the proximate cause of the injury,” before they could answer the first issue “Yes.” We think his Honor fully explained the doctrine of proximate cause, so as to leave no misapprehension in the minds of the jury. The other objection is by no means trivial. It relates to the words, “that the plaintiff was deaf does not make him an outlaw.” We think the use of such [338]*338language in the prayer for instructions unfortunate, to say the least; but we cannot think when repeated from the bench that the jury inferred that his Plonor was stating it to be his opinion that defendant had treated plaintiff as an outlaw. We do not place any such construction upon it, and we do not believe the jury did. The charge which preceded this particular instruction was so clear, fair and impartial in its general tenor that we are sure the jury did not receive the impression that the Judge was so hostile to defendant as to intimate an "opinion that it was treating plaintiff as an outlaw. 'While it was not well advised in the Court to have adopted such language, under all the circumstances we do not think it necessitates a new trial on that ground.
Another prayer of plaintiff given and excepted to is as follows:
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Bbown, I.
The plaintiff was walking on Nutt Street in the city of Wilmington, at a locality where many of defendant’s tracks cross it leading to the wharves on the Cape Pear River, when he was run into by a car and knocked down and injured. There are no exceptions to the introduction of evi[335]*335dence, and the errors we are asked to review are confined to the charge of the Court.
The evidence is very conflicting as to how the injury was occasioned, as to speed of the moving car, as to whether it was an attempt to make a running switch, and as to the vigilance of the flagman and the other servants of the company. There was evidence introduced by plaintiff tending to prove that the crossing is a dangerous one; that there are some fifteen tracks crossing Nutt Street there; that trains and engines are constantly going in different directions at the same time on some of these tracks; that the street leads across these tracks to the Seaboard Air Line depot, and that there is much traffic and passing along it; that there are no gates to close when engines and trains are passing and only one flagman whose duty it is to warn passers of the approach of trains.
Plaintiff testifies that on 16 January, 1905, he had crossed thirteen tracks and was looking out for the cars; that he saw some up towards the bridge standing still; that he then looked towards the compress for cars on that track; that he continued to walk on, looking for cars, when he was hit by one unawares and badly injured; that the car was a flat-car with no one on it; that Mr. Hankins, the crossing-flagman, was in a little house 125 feet away, and if he saw him he did not come to his rescue. Plaintiff also offered some evidence tending to prove that the flat-car which struck him was a loose car which had been “kicked,” in railroad parlance, from the train for the purpose of making a “running switch” ; that the car was moving fast across Nutt- Street when it hit plaintiff, and that “there was no one on it or near it”; and one witness said that “there was no flagman at all.” There was strong contradiction of this evidence by defendant’s witnesses, but it is unnecessary to set out the tenor of their evidence.
The defendant offered, also, evidence tending to prove contributory negligence upon the part of the plaintiff.
[336]*336It is not to be doubted that upon plaintiff's showing the defendant was guilty of negligence, and in the absence of contributory negligence the plaintiff is entitled to recover damages.
The attempt to make a running switch across a much-frequented street is not only a ,negligent, but a most dangerous and unwarranted operation, and has been so held by a number of courts: Bradley v. Railroad, 126 N. C., 135; Brown v. Railroad, 32 N. Y., 591; Fulmer v. Railroad, 68 Miss., 355; Railroad v. Summers, 68 Miss., 566; French v. Railroad, 116 Mass., 537; Railroad v. Garvey, 58 Ill., 83; Railroad v. Baches, 55 Ill., 379.
It matters not whether the purpose was to “shunt” the car off on a switch or to give it force enough to roll along on the same track: it is negligence to permit a car to be “cut loose” and roll on uncontrolled by any one across a much-used crossing.
The jury having taken plaintiff’s version as the true one, there is sufficient evidence to uphold their finding on the first issue. Upon the issue of contributory negligence the evidence is conflicting. The evidence of the plaintiff, carefully examined, tends to prove that he was exercising all the care a man in his condition and circumstances could well exercise. There aré a great many tracks along there, and the most prudent of men may get confused; but the plaintiff states how he looked, and where he looked, and it is evident from his statement he was doing all he could to safeguard himself. The plaintiff’s evidence, if believed, abundantly justified the verdict of the jury. It is therefore our opinion that his Honor properly overruled the motion to nonsuit. It is not necessary that we should set out his Honor’s charge. It is very clear and comprehensive, stating with fullness and fairness the contentions of plaintiff and defendant and then instructing the jury clearly as to the law upon the different phases of the evidence. At the close of the evidence the Court [337]*337gave certain instructions at request of plaintiff, and in the words of the prayers, which are excepted to. Among others, he gave the following:
‘‘If the jury find from the evidence that the crossing along Nutt Street, having fifteen or more tracks upon which engines and cars were constantly shifting, was used by a very large number of people in the conduct of their business, then it was the duty of the defendant to furnish to persons desiring to cross the railroad at Nutt Street, in the city of Wilmington, either on foot or with vehicles, a reasonably safe method of crossing, either by way of bridges, gates, an adequate number of flagmen or watchmen, or in some other way. That even if the jury should find from the evidence that the plaintiff was negligent in not using ordinary care in looking and listening for approaching trains, still the jury should answer the first issue Wes’ if they further find from the evidence that the defendant could have prevented the injury by the use of means at hand or that it could have had at hand by t-heyise of reasonable care and diligence; and the fact that the plaintiff was deaf does not make him an outlaw, neither does it lessen the responsibility of the defendant company to warn him of approaching danger.”
The first objection made to this instruction is that it ignores the necessity for determining the proximate cause of the injury. Taken alone, the criticism may be well founded. But the charge must not be taken in sections, but as a whole. The jury had just been told in unmistakable terms that they must find “that such negligence produced the injury complained of,” and again, “that such negligence was the proximate cause of the injury,” before they could answer the first issue “Yes.” We think his Honor fully explained the doctrine of proximate cause, so as to leave no misapprehension in the minds of the jury. The other objection is by no means trivial. It relates to the words, “that the plaintiff was deaf does not make him an outlaw.” We think the use of such [338]*338language in the prayer for instructions unfortunate, to say the least; but we cannot think when repeated from the bench that the jury inferred that his Plonor was stating it to be his opinion that defendant had treated plaintiff as an outlaw. We do not place any such construction upon it, and we do not believe the jury did. The charge which preceded this particular instruction was so clear, fair and impartial in its general tenor that we are sure the jury did not receive the impression that the Judge was so hostile to defendant as to intimate an "opinion that it was treating plaintiff as an outlaw. 'While it was not well advised in the Court to have adopted such language, under all the circumstances we do not think it necessitates a new trial on that ground.
Another prayer of plaintiff given and excepted to is as follows:
“That if the jury find from the evidence that the defendant company was operating the train which injured the plaintiff in violation of an ordinance of the city of Wilmington, and that it did not have a man on the end of the car approaching the crossing, as required by said ordinance, then this alone is a sufficient circumstance from which the jury may infer negligence on the part of the defendant, and to justify them in answering the first issue ‘Yes.’ ”
It is insisted that this instruction contravenes the rule laid down in Smith’s case, 132 N. C., 824, and Duval’s case, 134 N. C., 332, where it is held that running trains through cities and towns at a greater speed than is allowed by the municipal ordinances is some evidence of negligence to be submitted to the jury. The ordinance of the city of Wilmington requiring that the railroad company shall have a man on the end of a car approaching this crossing is an affirmance of the general law of the State. It did not declare anything to be law which was not already in force. In giving this instruction the Court did not tell the jury that a violation of a city ordinance was per se negligence, but that the jury might [339]*339infer negligence from the circumstance that no man was on the end of the car. This was substantially what the Court had already charged, and the giving of this further instruction was unnecessary and harmless. It is true, in this portion of the charge there is'no reference to proximate cause, but we repeat that the charge must be taken in its entirety and not in “broken doses.” It is unnecessary to lengthen this opinion by considering in detail the prayers of defendant upon the issue of contributory negligence. Most of them are substantially given in the charge of the Court, and many of them were given verbatim. In instructing upon this issue his Honor was eminently just to defendant, and applied the law applicable to the differing phases of the evidence with clearness and accuracy. We discover no error in any instruction he gave or omitted to give as to contributory negligence.
After charging the jury fully and correctly as to actual or compensatory damages, the Court, at request of plaintiff, gave the following special instruction:
“In considering the question of damages, and in the attempt to reach the amount which the jury will award, if they are satisfied by the evidence that the plaintiff is entitled to any damage, they may take into consideration the question whether the injury was due to such negligence which amounts to a little more than an accident, or such negligence that shows wanton disregard of the rights of the plaintiff; and if they should fin'd in this case that the conduct of the defendant has been such as to indicate a reckless disregard of its duty to the plaintiff, they may, if they feel disposed, increase the allowance of damages for that reason.”
This is an instruction that plaintiff is entitled to recover punitive damages in some phases of the evidence, and is erroneous. There is no allegation in the complaint, and no evidence that the injury was wilfully, wantonly and recklessly inflicted in utter disregard of plaintiff’s rights. There is nothing in the facts of this case to bring it within the [340]*340principles laid down in Holmes v. Railroad, 94 N. C., 318, cited by plaintiff. Neither is Purcell’s case any authority for awarding punitive damages to plaintiff. That case was overruled in Hansley’s case, 115 N. C., 603, and reinstated upon a rehearing of same case, 117 N. C., 570, upon another ground than that given in the original opinion, viz., that Purcell was treated with indignity and contempt in rushing by the station when there was room for passengers on the train. In actions ex delicio the motive of the defendant becomes material. If a tort is committed through mistake, ignorance, or mere negligence, the damages are limited to such as are called compensatory or actual. 1 Sutherland on Damages, sec. 373; 5 Am. and Eng. Ene. (1 Ed.), p. 21, where the authorities are collected. Railroad v. Arms, 91 U. S., 489, and the elaborate opinion of Mr. Justice Avery in Hansley’s case, 115 N. C., 605.
It is contended that the Court finally instructed the jury that punitive damages should not be allowed in this case, in that the record disclosed that “At the conclusion of the whole charge, counsel for plaintiff asked if the Court would not charge that the plaintiff could recover punitive damages, and the Court said it would charge the jury that they must not allow punitive damages.”
As we have held, his Honor instructed the jury in the previous part of his charge practically that punitive damages might be allowed. If he intended this as a correction of the former part of his charge, it was his duty to have called the attention of the jury to it as a correction. It would seem from this colloquy between Judge and counsel that both thought that the Court had not already instructed practically that the jury could award exemplary or punitive damages. The Court ought to have defined what is meant by punitive damages, for as it is a technical legal term, the jury might not have considered that his Honor had already charged in effect that they could award them. So we think that, [341]*341notwithstanding what the Court stated at the conclusion of the charge, the jury might have felt at liberty to go beyond compensatory damages under the authority of what had been previously said. They had a right to suppose that if his Honor intended to correct his charge he would have called their attention to it as a correction.
The jury were, therefore, left at sea, between contradictory instructions upon the issue of damages, which, under numerous decisions of this Court, entitles the defendant to a partial new trial.
In Edwards v. Railroad, 132 N. C., 101, it is said: “It is well settled that when there are conflicting instructions upon a material point, a new trial must be granted, as the jury are not supposed to be able to determine when the Judge states the law correctly and when incorrectly.”
Edwards v. Railroad, 129 N. C., 78; Williams v. Haid, 118 N. C., 481; Tillett v. Railroad, 115 N. C., 662.
Let one-half the costs of the appeal be taxed against the plaintiff and one-half against the defendant. It appears that unnecessary portions of the record were sent up at the plaintiff’s request. It is ordered that one-third of the costs of printing the record and one-third of the costs of making out the transcript in the Superior Court be taxed against the plaintiff individually.
It is ordered that there be a new trial on the third issue.
Partial New Trial.